COMMERCE COMMISSION v LODGE REAL ESTATE LTD & ORS [2018] NZHC 1633

COMMERCE COMMISSION v LODGE REAL ESTATE LTD & ORS [2018] NZHC 1633 [4 July 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV 2015-404-3045[2018] NZHC 1633BETWEEN COMMERCE COMMISSIONPlaintiffAND LODGE REAL ESTATE LIMITEDFirst Defendantcont /2Hearing: [On the papers]Counsel: J C L Dixon QC, L C A Farmer and A L McConachy for PlaintiffL J Taylor QC and M A Cavanagh for First and SeventhDefendantsD H McLellan QC, M S Anderson and J H Whitehead for Thirdand Sixth DefendantsJudgment: 4 July 2018JUDGMENT OF JAGOSE JThis judgment is delivered by me on 4 July 2018 at 12.30pmpursuant to r 11.5 of the High Court Rules......................................................Registrar / Deputy RegistrarCounsel/Solicitors:John Dixon QC, Auckland (Plaintiff)Meredith Connell, Auckland (Plaintiff)Lesley Taylor QC, Wellington (1st and 7th Defendants)McElroys, Auckland (1st and 7th Defendants)Daniel McLellan QC, Auckland (3rd and 6th Defendants)Wotton & Kearney, Auckland (3rd and 6th Defendants)/2LUGTON'S LIMITEDSecond DefendantMONARCH REAL ESTATE LIMITEDThird DefendantONLINE REALTY LIMITEDFourth DefendantSUCCESS REALTY LIMITEDFifth DefendantBRIAN KINGSixth DefendantJEREMY O'ROURKESeventh Defendant[1] The Commission seeks permanent confidentiality orders in relation toidentified documents received in evidence under interim confidentiality orders at thetrial of this proceeding in September 2017. My substantive judgment of 2 November2017 noted at [255]-[256] my interim orders were to be revisited, and madetimetabling orders for such an application.[1] In accordance with that timetable, the Commission seeks orders:(a) preventing search or access of identified documents on the Court filewithout reference to counsel for the Commission and/or a further orderof the Court;(b) requiring identified documents not be disclosed to the defendants; and(c) substituting the agreed bundle of documents held on the Court file witha revised bundle omitting any documents not received in evidence.The identified documents – obtained by the Commission from the defendants or thirdparties, and being a subset of those subject to my interim orders – are said to remainconfidential and/or commercially sensitive.[2] The defendants agree to the Commission's proposed treatment of documentsaccessible to them. I am satisfied from my review of the documents, including thosenot accessible to the defendants themselves (but accessible to their counsel), theCommission's claims to confidentiality are justified, including for the reasons set outin the affidavit of Nigel Thomas William Jeffries, sworn 20 September 2017, which –given the delay in issuing this judgment, and the absence of any updating evidence –I have taken to remain current.[3] Under Rule 5(2) of the Senior Courts (Access to Court Documents) Rules2017, notwithstanding prescribed public and party rights to access documents held onthe court file, I may "direct that judgments, orders, documents, or files of any kindmay not be accessed without the permission of the Judge". To the extent theconsiderations in rules 12 and 13 have application to such pre-emptive direction, I amalso satisfied open justice post-trial is not affected, but the protection of confidentialityand privacy interests is furthered, by making the sought directions in relation to theidentified documents.[4] Last, I agree the Court file should only retain so much of the common bundleas was received in evidence, in terms of HCR 9.5(4) and (5). That is sensible formalrecord hygiene. (Electronic copies of the original common bundle remain held onCourt servers, and are not proposed to be expunged.)[5] I order:(a) the documents identified in schedule 1 to this judgment, and which areheld on the court file, may not be searched or accessed withoutreference to counsel for the Commission and/or a further order of theCourt;(b) the documents identified in schedule 2 to this judgment are not to bedisclosed to the defendants without reference to counsel for theCommission and/or a further order of the Court; and(c) the common bundle held on the court file is to be replaced with arevised common bundle to be provided by the Commission, containingonly the documents received in evidence.[6] Finally, as with my costs judgment of 26 June 2018, I regret the delay in issuingthis judgment. Although the confidentiality memoranda were filed in accordance withmy timetable orders, I was only provided them recently for my decision. In theinterests of dispatch, this judgment is more cursory than it may otherwise have been.—Jagose J